Hill v. Barlow

Simon, J. Several creditors of the defendant, Barlow, have joined in this action, for the purpose of annulling a mortgage given by him and his wife to the Commercial Bank of Natchez, to secure the payment of a large sum of money, declared in the act to be due by Barlow to the Bank. This act of mortgage was passed on the 13th of March, 1.839, before the Judge of the Parish of Concordia, and was duly recorded in the Parish of Madison, where the property is situated. The plaintiffs complain, that Noah Barlow, being, to the knowledge of the Commercial Bank, in insolvent circumstances at the time that the mortgage was executed, consented to give the said mortgage, with a view to secure to the Bank the payment of a pre-existing debt due by him to the Bank, a long time anterior to the date of the mortgage ; that said debtor’s insolvency was notorious, and well known to the President, Directors, and Company of the Bank; and that the mortgage was intended by both the mortgagors and mortgagees to secure to the mortgagees an unjust, illegal, and fraudulent preference over the other creditors of the said Barlow, &c. This suit was instituted on the 12th of March, 1840, against Noah Barlow and his wife only, with a prayer, that as they were absentees, curators ad hoc should be appointed to represent them ; but the District Judge, by an order signed on the same day on — 145 — which the petition was filed, after appointing a curator ad hoc to the defendants named in the petition, thought proper to appoint also a curator ad, hoc to the Commercial Bank of Natchez, ordering that said curators “ be notified thereof by service in due form of law." Accordingly, a copy of the petition and citation were served upon the curator ad hoc, appointed to Barlow and wife, on the 18th of March, 1840; but the curator ad hoc, appointed to the Commercial Bank, thought himself authorized to take notice of his appointment before being served with the necessary proceedings, and acknowledged the service thereof at the foot of the petition, on the 13th of March, 1840, as follows : “I accept service of the above petition, and waive the necessity of citation and copy of the petition as the law requires.” The defendants, Barlow and wife, joined issue by denying all the allegations contained in the plaintiffs’ petition, except the execution of the act of mortgage, which they allege was made in good faith, and by pleading prescription. The Commercial Bank of Natchez, first appeared by pleading the general issue, and afterwards filed a peremptory exception founded upon the prescription of one year against the plaintiffs’ action, alleging that said prescription had fully accrued against the plaintiffs’ action, before any issue joined in this suit, and before any legal notice of said suit was ever served on or given to the Bank, and was never legally interrupted, within the year from the date of the registry of the act sought to be set aside. The first answer of the Bank was filed on the 26th of November, 1840, and the plea of prescription on the 17th of May, 1841. After a full investigation of the facts adduced by the parties in support of their respective pretensions, the Judge, a quo, rendered judgment in favor of the plaintiffs against Barlow, liquidating the several sums due by him to each of the plaintiffs, by virtue of the several judgments declared upon in the petition ; but refused to set aside the act of mortgage complained of, declaring the same to be confirmed and adjudged good and valid. From this judgment, the plaintiffs have appealed. Several points have been raised by the plaintiffs’ counsel, growing out of the evidence in the case, and the law applicable thereto, and he has made strenuous efforts to convince us that this — 146 — revocatory action should be maintained, and that the act of mort gage, declared to be good and valid by the lower court, ought to be annulled and set aside ; but from the state of the case, our attention is necessarily first called to the peremptory exception filed by the appellees, founded upon the plea of prescription of one year; as our opinion upon this point, if favorable to the defendants, will render it unnecessary to examine, or, at least, to express any opinion upon any other of the questions submitted to our consideration. The appellees’ counsel has contended that the curator ad hoc, appointed by the court to represent his clients, had no legal right by any voluntary act, to waive, abandon, or interrupt the prescription, accruing in favor of the Bank; that his acceptance of service,- or waiver of it, was unauthorized, illegal, and does not bind the Bank, and that the prescription still continued to run. It is, perhaps, proper to remark that, as to the defendants, Barlow and wife, more than one year had elapsed between the date of the act of mortgage complained of, and the service of the citation on the curator ad hoc, appointed to represent them. As to them, who are the mortgagors, the prescription had clearly accrued t and how far such prescription, acquired by one of the parties to the act, can benefit the other party, or preclude the plaintiffs from exercising successfully their revocatory action against both, or maintaining it against one only, is a question which would have been of some importance in this case, had the prescription been legally and unequivocally interrupted as to the mortgagees. As the case stands, however, it will not fall under our examination. One of the well known rules relative to prescription is, that it becomes interrupted, when the party in favor of whom the time necessary to acquire it is running, has been cited to appear before a court of justice, on account of the right or claim to which the prescription would apply. This is called a “ legal interruption and it matters not whether the suit has been brought before a court of competent jurisdiction, or not. Civil Code, arts. 3482, 3484, and 3516. It is, therefore, necessary that the party should be cited; and it cannot be controverted, that any other means of knowledge of the proceedings instituted against him, brought home to the party against whom the prescription is sought to be legally — 147 — interrupted, would not be sufficient to operate as a legal interruption in the true sense of the law. Now, in this case, the Commercial Bank having been made a party to the suit by the appointment of a curator ad hoc, said curator acknowledged service of the citation without waiting for the issuing of the process, and for its service upon himself according to law ; but this was the only act which he ever performed in the name of the absent defendants whom he had been appointed to represent, and it was not until the 26th of November following, that said defendants (the Bank) made a voluntary appearance in the suit, and filed an answer signed by counsel regularly employed to defend it. It is said, however, that the acceptance of service by the curator ad hoc, amounts to a legal interruption of the prescription of one year, and is binding upon the Bank. Art. 57 of the Civil Code provides, that “ if a suit be instituted against an absentee who has no known agent in the State, the Judge before whom the suit is pending shall appoint a curator ad hoc, to defend the absentee in the suit.” The same provision exists in arts. 116 and 964 of the Code of Practice; and the object of the Jaw appears clearly to be, that the interest of the absentee should not be sacrificed in his absence, but that, on the contrary, his rights should be well defended and in the same manner as if he were present. After a curator ad hoc, has been appointed to an absent person, the law requires that the petition and citation should be served upon him, either by delivery in person, or .by leaving them at the usual place of domicil of the curator. Code of Practice, arts. 194, 195. And we are not ready to say that art. 177 of the same code, which provides for the waiver or acknowledgment of service, to be written on the back of the original petition, by the defendant or his attorney, should apply to a curator ad hoc; since, from the terms of the law, it seems that such waiver or acknowledgment is only to be made by the defendant personally, or by the attorney whom he has employed. The service of the petition upon the curator ad hoc, amounts to a notification of his appointment. Until then he has no capacity to act as such ; and it appears to us at least irregular, if not wholly illegal, that he should take notice of his appointment, and bring the absentee before the court, by a simple acknowledgment of the service of the citation, — 148 — or by a waiver thereof. This is not one of the modes recognized by law, by which an absentee can be called before a court of justice, to answer to a demand made against him by one of our citizens. The process should be regularly served upon the curator appointed to defend him ; and it seems to us, that the latter cannot waive any of those legal proceedings which are instituted and required for the protection of the rights of the absentee, whom he is called upon by the court to defend. In 10 Mart. 474, this court held, that every law that permits our courts to decide on the rights of those who are absent, should be strictly construed ; and that the formalities which it prescribes in allowing a creditor to pursue his debtor in this way, ought tobe exactly followed. If this be correct, and we do not doubt of the correctness of the doctrine, it follows, that the acknowledgment of service made in this case by the curator ad hoc, was an illegal act on his part, and that, as such, it cannot prejudice the appellees. It has been said, however, that the Bank, by the answer filed, recognized its having been made a party to the suit, and entered its appearance in consequence of the waiver, or acknowledgment of service made by the curator. The answer filed on the 26th of November, does not allude in any way to the act of the curator, but only slates that the Bank was made a party to the suit. This may also be considered as an allegation made in reference to the order of the Judge ; and at any rate, we cannot consider the appearance of the appellee, in any other light than as a voluntary one, and for the purpose of litigating and settling in one and the same suit, the rights which the Bank had acquired, under the act of mortgage, to the property which the plaintiffs were seeking to apply to the satisfaction of their judgments against the original defendants. ' But is it true, in supposing that the curator, ad hoc, could take notice of his appointment by waiving the service of the petition, that he could legally waive the service of the citation, or acknowledge such service, so as to cause a legal interruption of the prescription which was on the eve of expiring, and of being acquired by his clients 1 Is it true, that he could thereby renounce one of the most important rights of the party whom he was appointed to defend 1 This question, in our opinion, must be answered nega — 149 — lively. In matters of agency, the law says, that in general, where things to be done are not merely acts of administration, or such as facilitate such acts, the power must be express and special. Civil Code, art. 2966. Prescription is a legal right granted by law for the purpose of acquiring property, or of beingliberated from a debt by the lapse of time. The exercise of the right, or its abandonment, is not a mere act of administration, When exercised, it is an act of absolute ownership, used as a title to the property, or as a bar to the action of the creditor; and when waived, it is an act of alienation, which no agent can do so as to have the effect of depriving his principal of the exercise of the right, without special authority from him to do so. So, in 3 La. 203, it is held, that attorneys at law, as such, have not the power of acknowledging a debt; and it is well known, that the acknowledgment of a debt is one of the modes of interrupting prescription. Civil Code, art. 2517. The curator ad hoc, cannot have a more extensive authority than an attorney at law employed by the party, particularly as the former is often-times unknown to the absentee whom he is appointed to defend, We think, that on the contrary, his powers should be restricted, and strictly limited to those allowed by law, and that they should not be extended to performing any other acts, but those tending to defend the rights and interest of the absentee whom he represents. So, in 13 La. 284, we held, that a curator ad' hoc, has no capacity or authority to waive, prospectively, in behalf of his client, the production of legal evidence ; and that he cannot bind him, by agreeing to dispense with the forms required by law in taking evidence. In 17 La. 117, it was decided, that a person appointed by a court, to defend the rights of absentees in a suit against them, ought not to be permitted to surrender any lawful means of defence on their part, to the injury of those whom he represents. And in this case, we must come to the conclusion, that the curator ad hoc, had no authority to waive the service of the citation, and, by his voluntary act, to cause a legal interruption of the prescription set up as a peremptory exception by the appellees. It has been further urged, that the prescription in this case cannot be taken as having run from the date, or recording of the act of mortgage, because said act has never been accepted by the — 150 — Bank ; and that the time should only take effect and be counted from the date of the acceptance, to wit, the filing of the defendant’s answer ; as before then, the Bank had never expressed any intention to accept the mortgage. This objection cannot avail the plaintiffs. The allegations of their petition are directed against the act of mortgage, as if it had been duly and regularly accepted at the date of the act by the mortgagees. It is stated therein, that said mortgage was intended by both mortgagors and mortgagees to secure to the mortgagees an unjust, illegal, and fraudulent preference, &c. These allegations clearly mean, that the mortgagees participated in the execution of the mortgage; that they were present when it was so executed; and that the fraud complained of was committed by both parties to the act. If so, the mortgage must have been accepted; and it does not lie in the mouth of the plaintiffs to say now, ¿hat the act of mortgage was unknown to the Bank, and thereby to gainsay the allegations upon which their action is necessarily based. But however it may be as to the effect of those allegations, we think, that the want of acceptance in this case cannot prejudice the appellees, as it is well settled in our jurisprudence, that a mortgage in favor of an absent person, executed and registered by the mortgagor, (here the mortgagees are absent, and the act was recorded by the mortgagor,) has its legal effect, although not accepted by the mortgagee. 2 La. 552. See also, 2 Mart. N. S. 672, and 3 Ib. N. S. 607. With this view of the question of prescription, we think, that the peremtory exception filed by the appellees must prevail. The petition contains no other cause of nullity than an undue preference intended to be given by Barlow to the Bank. In such case, the action is prescribed by one year, reckoning from .the date of the contract sought to be set aside. Civil Code, art. 1982. 3 La. 28. 14 Ib. 308. We conclude, that the appellees are entitled to the full benefit of the exception, notwithstanding the unauthorized acknowledgment of service of the citation, made in their names by the curator ad hoc, who had been appointed by the court to defend them. Judgment affirmed.